UN Office of the Special Adviser on the Prevention of Genocide and the International Criminal Court Prosecutor: Investigate the Possibility that Israel is Committing the Crime of Genocide Against the Palestinian People

The case almost ended abruptly when a judge dismissed the plaintiffs’ claims in August 2017, asserting that the matter was outside the court’s purview. But the appeals court found that not all the issues at stake were political and beyond the court’s jurisdiction. Its ruling came down to two pivotal questions: whether the court would have to determine who held sovereignty over the territory in question, and whether the judges were empowered to hear claims of genocide allegedly committed by Israeli settlers funded by the defendants.

The ruling raises the prospect whether a U.S. court has to determine Israeli settlers committed war crimes and whether those targeted in the suit are financially liable. U.S. Circuit Judge Karen LeCraft Henderson said in her decision that the sovereignty issue was separate from a broader question of whether war crimes, including genocide, were being committed there.

“A legal determination that Israeli settlers commit genocide in the disputed territory would not decide ownership of the disputed territory and thus would not directly contradict any foreign policy choice,” Henderson said in a ruling joined by U.S. Circuit judges Nina Pillard and Harry Edwards.

The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse.

… the second potential political question presented—are Israeli settlers committing genocide—is a purely legal issue… Genocide has a legal definition. See United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, 280 (defining genocide, in part, as “[k]illing members of [a national, ethnic, racial or religious group]” “with intent to destroy [the group], in whole or in part”). Thus… by incorporating the law of nations and the definitions included therein—provides a judicially manageable standard to determine whether Israeli settlers are committing genocide… We are well able… to apply the standards enunciated by the Supreme Court to the facts of this case.

A group of Palestinians and Palestinian Americans are seeking $34.5 billion dollars in damages from wealthy individuals and companies they accuse of financing and profiting from Israel’s settlements in the occupied West Bank and other abuses of their rights. The plaintiffs include Palestinians who have lost family members in Israeli attacks in the West Bank and Gaza Strip. Their lawsuit is the latest effort to expose and curb the role of organizations that operate as tax-exempt US charities in fueling violence and settlement expansion on occupied Palestinian land. It names as defendants US tycoons Sheldon Adelson, Haim Saban, Irving Moskowitz and Oracle founder Lawrence Ellison… The lawsuit, filed in a Washington, DC, federal court on Monday, alleges a wide range of crimes under US and international law, including genocide, war crimes and crimes against humanity, conspiracy, money laundering, racketeering, perjury and pillage.

222. All Defendants herein had to know the type of heinous criminal activity being engaged in by armed and aggressive settlers and IDF/G4S personnel in the OPT, for any number of reasons. As early as 1990, ethnic cleansing, wanton property destruction, heavy civilian casualties, incarceration, and torture of political prisoners as well as children, were all common knowledge in Israel. Haaretz articles and editorials repeatedly reported on and criticized these criminal activities and settlement expansion. That activity, i.e., ill treatment and violent subjugation of a civilian population, of course, constitutes classic war crimes under the Nuremberg Principles and the U.S. War Crimes Statute. It also violates the UN Genocide Convention.